Hong Kong government should release official English version of national security law to avoid confusion in court, legal experts say
- Judges who do not understand Chinese could be forced to rely on an expert when trying cases, they say
- Residents who only speak English cannot be deemed to know a law that has not been gazetted in their language, veteran lawyer argues
But three days after the law came into effect in the city, a government spokesman said on Saturday that the English translation of the legislation had been published on its website on Friday.
The government gazetted the Chinese version of the law at 11pm on Tuesday, hours after it was passed by China’s top legislative body, the National People’s Congress Standing Committee.
Hours after the law was gazetted, Xinhua state news agency did release a translation, but one it described only as “a reference” and it does not have official status in the city.
That could pose practical problems for judges tasked with trying cases, particularly those who did not understand Chinese, lawyers said.
Hong Kong Bar Association chairman Philip Dykes said earlier that the lack of an official translation could impede understanding of the legislation by some members of the judiciary.
“Without an English version, you’re going to have problems in court, because some judges may not be able to read it,” Dykes said on Friday.
Citing Beijing officials, Basic Law Committee member Priscilla Leung Mei-fun said on Friday she was told the Chinese version of the law shall prevail “because it is a national law”.
But Dykes said non-Chinese speaking judges might run into difficulties comparing the texts and could be forced to rely on an expert in court to assist the process.
A government source said on Friday authorities were discussing with Beijing how an official English version could be published as soon as possible.
Hong Kong national security law full text:
A spokesman for the Department of Justice did not respond to the Post’s inquiry on Friday.
The new law aims to stop and punish acts of secession, subversion, terrorism and collusion with foreign forces to endanger national security, and carries a maximum penalty of life imprisonment.
Ling Bing, a law professor at Sydney University, noted Xinhua’s translation was problematic.
The phrase “coercive measures” imposed on suspects who breached the national security law was translated into “mandatory measures”.
“It would be difficult for Hong Kong’s judges and prosecutors whose primary working language is English to handle cases relating to the national security law in the absence of an official English translation,” he said.
At least 10 people were arrested for allegedly breaching the new provisions on Wednesday, the 23th anniversary of Hong Kong’s return to Chinese rule, as protesters took to the streets, some calling for the city’s independence.
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A former assistant solicitor general of the colonial-era Legal Department, Michael Blanchflower, who is now a senior counsel in the private sector, said it was normal for laws in the city to be gazetted in both languages.
“There is a large population in Hong Kong that does not understand or speak Cantonese, so they rely upon the English version of the law printed in the gazette,” Blanchflower said.
“Under the Official Languages Ordinance, Chinese and English are the official languages of Hong Kong for the purpose of communication between the government or any public officer and a member of the public and for court proceedings.
“The national security law is a Hong Kong law, so the government is under an obligation to have a text of the law printed in English in the Gazette,” he said.
“If a law is printed in the gazette then a person is deemed to know the law. A person is not deemed to know the law purportedly [from] an unofficial translation in Xinhua press.”
A senior legal source believed Beijing and the Hong Kong government might prefer most national security cases to be tried in Chinese, a move that would effectively block foreign judges from hearing them. Under the legislation, foreign judges are not excluded from presiding over national security cases.
Chief Justice Geoffrey Ma Tao-li said on Thursday foreign judges should not be barred from hearing national security cases.